The Center on the Administration of
Criminal Law is pleased to present
Prosecution Notes. This edition
recounts some of the Center’s successes
since its founding, introduces the
Center’s personnel, offers analysis and
reform proposals by expert practitioners
of recent developments in the area of
prosecutorial misconduct, and summarizes
all criminal law decisions from
the 2009-10 Supreme Court Term.

In This Edition:
News From the Center

Over the last year, the Center has been successful at advancing its mission through
its three main arenas of activity: academia, the courts, and public policy debates.
This article discusses some highlights, and all of the Center’s work is discussed on
its website, www.prosecutioncenter.org. click here for more

Expert Opinion: bucking the conventional wisDom
Elkan Abramowitz (’64) of the law firm Morvillo, Abramowitz, Grand, Iason,
Anello & Bohrer, P.C., discusses disclosure of defense strategies and theories to the
government in advance of trial. click here for more

Allocating Prosecutorial Power:
How Prosecutors Compete, Cooperate, and Clash
The Center held its second annual major conference on April 23, 2010. The conference
brought together current and former prosecutors, the defense bar, and noted scholars
to address inter- and intra-jurisdictional cooperation and competition among criminal
prosecutors. Patrick J. Fitzgerald, the United States Attorney for the Northern District
of Illinois, delivered the keynote address. click here for more

Federal Sentencing at a Crossroads:
A Call for Leadership
On May 24, 2010, the Center co-sponsored a panel discussion on various questions
on the future of federal sentencing policy. Panelists included Congressman
John Conyers Jr. and Chief Judge and Sentencing Commission Chair
William K. Sessions. click here for more

scotus
Read summaries of all of the criminal law decisions from the 2009-10
Supreme Court Term. click here for more

personnel
Learn more about the people who work at the Center. click here for more

New York University School of Law

news from the center
By Anthony S. Barkow, Executive Director

S

ince the publication of the last edition of Prosecution Notes, the Center has been
continuing successfully to advance its mission through its three main areas of activity:
academia, the courts, and public policy debates. Some of those successes are discussed
here. All of the Center’s work is discussed on its website, www.prosecutioncenter.org.
Litigation

The Center’s litigation practice has continued to be
active and successful. The Center has filed amicus briefs
in the Supreme Court of the United States and in other
courts around the country, both in support of defendants
and in support of the government. A few recent examples
of successful results achieved in matters in which the
Center filed briefs are outlined below:
➤
Carachuri-Rosendo v. Holder,
supreme court of the united states
This case addressed whether immigration courts can treat
second or subsequent misdemeanor convictions as recidivist
felonies despite a state prosecutor’s choice to decline felony
charges and the fact that the individual was not actually
convicted as a recidivist. The Center filed an amicus brief
in support of the petitioner arguing that circuit court
decisions allowing such treatment improperly interfere with
the basic exercise of prosecutorial discretion, undermine
state interests in the proper and equitable administration of
criminal justice, and can lead to a violation of the right to a
jury trial. The Center previously had filed an amicus brief in
support of the successful petition for writ of certiorari.
These amicus briefs were filed in partnership with the
law firm Debevoise & Plimpton LLP.

On June 14, 2010, in a unanimous opinion, the Court
sided with the Center. The Court rested its decision in
part on Justice Department charging policy, a subject first
raised and most extensively discussed in the case in the
Center’s brief.
➤
Graham v. Florida,
supreme court of the united states
The Center filed an amicus brief in support of the
petitioner, who was serving a life sentence without
the possibility of parole for a nonhomicide offense
committed as a juvenile. The Center’s brief argued
that the text and history of the Eighth Amendment
indicate that the Cruel and Unusual Punishments
Clause prohibits disproportionate criminal sentences,
that such proportionality review is necessary in light of
the expansion of criminal laws and sentences and the
concentration of unreviewable discretionary power in
the hands of prosecutors, and that the Supreme Court’s
practice of applying a robust proportionality review in the
capital context while virtually eliminating proportionality
review in the noncapital context is unjustified.
This amicus brief was filed in partnership with the
law firm Steptoe & Johnson.

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On May 17, 2010, the Court sided with the
Center and ruled for Graham. Moreover, the Graham
dissent cited Faculty Director Rachel E. Barkow’s
article “The Court of Life and Death: The Two Tracks
of Constitutional Sentencing Law and the Case for
Uniformity,” 107 Mich. L. Rev. 1145 (2009), for the limited
proposition that the Court’s decision in Solem v. Helm is
an outlier within the Court’s jurisprudence.
➤
United States v. Arizona
united states district court for the
district of arizona
The Center filed an amicus brief in support of the
United States in its lawsuit against the State of Arizona
challenging the constitutionality of the state’s newly
enacted anti-immigration statute. The Center’s brief
argued that the Arizona law threatens public safety by
undermining law enforcement efforts to maintain positive
relationships and open lines of communication with the
communities they serve.
This amicus brief was filed in partnership with the law
firm Friedman, Kaplan, Seiler & Adelman LLP.
On July 28, 2010, the district court sided with the
Center and enjoined the most controversial aspects of the
legislation.

Save
the
Date

➤
United States v. O’Brien,
supreme court of the united states
The Center filed an amicus brief in support of the
defendant, arguing that the logic of the Supreme Court’s
decision in United States v. Booker made clear that Harris
v. United States—in which Justice Breyer was the crucial
swing vote in the majority—is no longer good law, and
therefore facts that trigger mandatory minimum sentences
must be treated as offense elements.
This amicus brief was filed in partnership with the law
firm Jenner & Block.
On May 24, 2010, the Court issued a unanimous
opinion siding with the Center. At oral argument, Justice
Breyer noted that he had switched the view he had taken
in Harris and now embraces the argument advocated in
the Center’s brief that Harris should be overruled. In his
concurrence, Justice Stevens pointed out Justice Breyer’s
change of opinion.

The Center also continued to advance criminal justice
policy through targeted efforts aimed at policymakers, the
media, and the public. A few recent examples include:

The Center hosted three major events in 2010.

➤
Faculty Director Rachel E. Barkow was appointed to
the Manhattan District Attorney’s Office’s Conviction
Integrity Policy Advisory Panel, a group of leading
criminal justice experts that advises the Office on national
best practices and evolving issues in the area of wrongful
convictions.
➤
Faculty Director Rachel E. Barkow testified before
the United States House of Representatives Subcommittee on Commerce, Trade, and Consumer
Protection regarding the proposed Consumer Financial
Protection Agency. Professor Barkow discussed, among
other things, the value of including state attorney general
enforcement as a counterweight to the possibility of
agency capture. Senior Fellow Anne Milgram and Faculty
Director Rachel E. Barkow also published an opinion
editorial in Politico.com that argued in favor of a role for
state attorneys general in policing fraud in the mortgage
and banking industries, and against federal preemption
of state regulation in this area.
➤
Executive Director Anthony S. Barkow submitted
testimony to the Pennsylvania House of Representatives
Judiciary Committee in support of legislation that would
prohibit life without parole sentences for juvenile offenders.
➤
Faculty Director Rachel E. Barkow and Attorney-inResidence David B. Edwards (’08) published an opinion
editorial in Forbes.com that argued that the recently
enacted health-care legislation will reduce crime and save
money by making substance abuse and mental health
treatment standard services.
➤
Executive Director Anthony S. Barkow published an
opinion editorial in Newsday that argued that Major
League Baseball is equally at fault as former pitcher Roger
Clemens for the sport reaching the point that Clemens
was indicted for lying to Congress.

➤
“Allocating Prosecutorial Power: How Prosecutors
Compete, Cooperate, and Clash” was held on April
23, 2010, and addressed inter- and intra-jurisdictional
competition and cooperation among prosecutors. Patrick
J. Fitzgerald, the United States Attorney for the Northern
District of Illinois, was the keynote speaker. (See related
article on page 8.) “Federal Sentencing at a Crossroads:
A Call for Leadership” was held on May 24, 2010. The
event (co-sponsored by the Federal Bar Council) was
moderated by Judge John Gleeson, and panelists included
Congressman John Conyers Jr., and Chief Judge William
K. Sessions, Chair of the United States Sentencing
Commission. (See related article on page 10.) On October
25, 2010, Cory A. Booker (below), Mayor of the City of
Newark, New Jersey, spoke and answered questions at a
“Conversation on Urban Crime.”

➤
On November 18, 2010, Raymond A. Kelly (LL.M. ’74),
the Commissioner of the New York City Police
Department will be the featured speaker at
another “Conversation on Urban Crime.”
➤
The Center’s third annual major conference (co-hosted
by the NYU Annual Survey of American Law Spring 2011
Symposium) will be held on Friday, March 25, 2011. The
keynote speakers will be Anne Milgram (’96), the former
Attorney General of the State of New Jersey who joined
the Center in April 2010 as a senior fellow, and Neil M.
Barofsky (’95), the Special Inspector General of the
Troubled Asset Relief Program.

etween 2006 and 2008, federal prosecutors reportedly dismissed indictments against
42 defendants charged with securities fraud—more than twice as many dismissals as in
the prior three years.3 The question for criminal defense attorneys is how to achieve this
result in a complex case in which counsel believes that a client was wrongly indicted.

Conventionally, defense attorneys representing
individuals under investigation or indictment do
not disclose to the government their clients’ defense
strategies or theories. Rather, criminal defense attorneys
generally share as little information as possible with the
government. The ability to withhold information from the
prosecution until the defense theory is certain—which
often is only after the government has presented its case
at trial—is one of the few advantages enjoyed by criminal
defendants in a process that favors the government. This
strategy is appropriate in many straightforward criminal
cases. However, because the concepts of “mail fraud” and
“conspiracy” are expansive, an increasing number of whitecollar criminal charges are premised on debatable esoteric
legal and accounting principles. In some cases, prosecutors’
lack of expertise with the complex accounting and other
issues faced by some industries results in individuals who
are not culpable being charged with crimes. In those cases,
educating the prosecution often can result in the best
result for a client—a dismissal.
In January 2009, the U.S. Attorney’s Office
for the Southern District of New York dismissed a
fraud indictment against David Stockman, a former
Congressman and Director of the Office of Management
and Budget under President Ronald Reagan.4 The same
day, the government issued a statement saying that “[a]fter
a renewed assessment of the evidence…including evidence
and information obtained after the filing of the Indictment,
the Government has concluded that further prosecution of
this case would not be in the interests of justice.”

The government’s “renewed assessment” likely
was prompted by the presentation by Mr. Stockman’s
attorneys in October 2008 of an extremely detailed 221page submission, which presented documentary evidence
establishing Mr. Stockman’s innocence.
In July 2008, the U.S. Attorney’s Office for the
Southern District of New York dismissed charges against
David Pinkerton, a former AIG executive, 31 months after
he was indicted for his alleged involvement in a plot to
bribe foreign officials in connection with an oil deal in
Azerbaijan. Mr. Pinkerton’s attorneys reportedly engaged
in discussions with the government for nearly a year
before the government dropped the charges.5
Mr. Stockman’s and Mr. Pinkerton’s victories
illustrate that when a defense attorney believes that the
conduct for which a defendant was indicted does not
actually constitute a crime, the attorney should undertake
the risk of educating the prosecution about the defense
to obtain a dismissal. There are factors, however, that
attorneys should consider before making such disclosures.

1 Elkan Abramowitz (’64) is a member of Morvillo, Abramowitz, Grand,
Iason, Anello & Bohrer, P.C. He is a former chief of the criminal division of the
U.S. Attorney’s Office for the Southern District of New York. Kefira Wilderman,
an attorney, assisted in the preparation of this article.
2 The views expressed herein are solely those of the author and not necessarily
those of the Center on the Administration of Criminal Law.
3 David Glovin, “Reputations Don’t Return When Prosecutors Drop Charges,”
BLOOMBERG, June 23, 2010.
4 The author of this article represented Mr. Stockman in connection with
the criminal case.
5 Glovin, supra note 3.

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Can the defect in the government’s case be corrected?
If the government can correct a legal defect in its case,
defense counsel should not educate the government about
the defect in advance of trial. The same is true if the
government can simply adjust the charges to account for
a defendant’s version of the facts. But if the defense can
account for the worst possible facts that cooperators could
disclose to the government, it may be advantageous to
present the defense to the government before trial.
Is the defendant’s account of the facts likely to change?
In a case where the government does not have access to
the defendant’s account of the facts, a defendant may
avoid telling his story to the government because it is
tactically advantageous to have the government attempt
to prove its case without knowing the defendant’s account.
However, if a defendant has proffered, or has testified in
a civil deposition, before a grand jury, or before the SEC
or another regulator, not only is the defendant’s account
of the facts unlikely to change, but also the defendant
is not bestowing an advantage upon the government by
offering his account and explaining why those facts do not
constitute a crime.
Will the essence of the defense be disclosed in advance
of trial? Many defendants make motions in advance
of trial, such as motions to dismiss, discovery motions,
and motions to exclude witnesses and evidence. In

complex cases, such as financial and accounting fraud
cases, defendants also often retain expert witnesses who
will submit detailed reports in advance of trial. Because
pretrial motions and expert reports will educate the
government about the defense, the defendant has little
to lose by attempting to convince the government of his
innocence before trial.
Does defense counsel have access to the government’s
documentary evidence and to cooperators’ statements? A
defendant who has access to the documents upon which
the government relies and information about cooperators’
and other witnesses’ statements is far better positioned
to explain to the government why that evidence does
not prove his guilt. Knowing what cooperators and
other witnesses are reporting to the government allows
a defendant to address the information that likely is
driving the prosecution and explain why his actions
did not constitute a crime. Where there are parallel
civil proceedings, a defendant should attempt to obtain
transcripts of witnesses’ deposition testimony and
documents through civil discovery. And although a
defendant is unlikely to obtain assistance from attorneys
for cooperators, defense counsel should approach the
attorneys for other witnesses to obtain information about
those witnesses’ statements to the government. Without
knowing what witnesses are saying to the government and

Prosecutors in the Boardroom:
Using Criminal Law to Regulate
Corporate Conduct
The Center is proud to announce that it will publish a book
entitled Prosecutors in the Boardroom: Using Criminal Law to
Regulate Corporate Conduct, comprising papers contributed
by scholars who participated in the Center’s inaugural annual
conference, “Regulation by Prosecutors.” The book will be
published in the spring of 2011 by New York University Press.

what evidence is in the documentary record, a defendant
cannot refute problematic facts.
What is the defendant’s tolerance for risk? Educating the
government about the defense is a gamble that requires
that the defendant have a high tolerance for risk. Even
where the client insists on explaining his side of the
story to the government, counsel must impress upon the
client that although a positive outcome is possible, it is
more probable that it still will be necessary to present
the defense to a jury. And by presenting the case to the
government before trial, the defendant may sacrifice some
of the advantage of surprise.
Assuming an attorney and client decide to
make pretrial disclosures in an effort to convince the
government not to proceed to trial, how is the defendant’s
account best presented to the government? Often, defense
counsel first will meet with the prosecutors to give an
“attorney’s proffer,” during which defense counsel will
report the defendant’s version of the facts and explain
why the defendant’s conduct was not a crime or why the
government cannot prove its case. If the government is
receptive, defense counsel may invite the government
to interview the defendant. Such proffers often are
conducted pursuant to “Queen for a Day” letters, which
protect witnesses from having their own statements
used against them at trial in the government’s case.
Sometimes, it is preferable to have a defendant speak
to the prosecutor without a “Queen for a Day” letter
because it supports the defendant’s claim of innocence
and because counsel can argue to the jury that the client
was interviewed voluntarily with no protection. If defense
counsel is not concerned that a defendant’s statements
may be introduced at trial by the government—because,
for example, the defendant will likely testify—it may
also be advantageous to offer to allow the government
to interview the defendant on the record. This is so
unusual that the government may react positively to the
defendant’s claim of innocence.
No two criminal cases can be treated alike and
there is no certain way—even when a defense attorney is
convinced of a client’s innocence or that the government
cannot prove its case—to ensure that the government will
dismiss an indictment in advance of trial. However, when
criminal defense attorneys think creatively, the results
often are better for their clients.

he Center held its second annual major conference, “Allocating Prosecutorial Power:
How Prosecutors Compete, Cooperate, and Clash,” on April 23, 2010. The conference
brought together current and former prosecutors, the defense bar, and noted scholars to
address inter- and intra-jurisdictional cooperation and competition among criminal prosecutors.

Patrick J. Fitzgerald, the United States Attorney for
the Northern District of Illinois, began the conference
by delivering the keynote address, focusing on the
relationship between United States Attorneys’ Offices
(the “tribe of the field”) and Main Justice (the “tribe of
the Potomac”). At the center of Fitzgerald’s address was
the argument that personal and office egos should be left
out of the determination of who should take the lead on
any particular case. “Look at it from a citizen’s point of
view,” Fitzgerald said. “What we ought to be doing is a
careful analysis of what value is added by the field versus
Main Justice and setting the levers so that the component
that adds the most value” is in charge. According to
Fitzgerald, experience level on a particular criminal
topic, local versus national impact, stewardship issues,
geographical scope of the
crime, and intelligence
Patrick J. Fitzgerald,
(access to and development
United States Attorney
of relevant information)
for the Northern District
are the key areas to focus
of Illinois, delivered the
on in making such a
keynote address at the
determination.
Center’s second annual
The conference then
major conference.
turned to the three panels
for the day. The first panel,
“The Feds, Our Federalism, and Local Prosecutors” featured
fast-paced Socratic questioning from moderator Ronald
Goldstock on a hypothetical that gave dozens of New York
law enforcement agencies jurisdiction over a single crime.
With views from current and former members of the

SDNY, EDNY, Manhattan District Attorney’s
Office, NYPD, Main Justice, and the Special Narcotics
Prosecutor for the City of New York, it quickly became
clear that “turf ” is a uniquely difficult concept in New York
City. While the panel agreed that cooperation is generally
the goal between the numerous New York law enforcement
agencies, it is not always the rule. The Honorable Sterling
Johnson Jr., United States District Judge, Eastern
District of New York, summed up the discussion when
he responded to a question from Goldstock on how his
experience would inform his decision on a jurisdictional
dispute: “I would reminisce about the wars that I was
involved in both as a state prosecutor and as a federal
prosecutor. How I was screwed as a state prosecutor.
How I screwed as a federal prosecutor. And I would
sit back and I would smile.”
The second panel, “Competition and Cooperation
Within the State,” injected a little more cooperation
into the day as it discussed not only the question of
federalism, but also prosecutorial hierarchy within the
state itself. Featuring two current and two former state
Attorneys General, the panel agreed that the jurisdictional
situation in New York was “bizarre.” Oregon Attorney
General John Kroger and Colorado Attorney General
John W. Suthers noted that cooperation is much simpler
in states where scarce resources require cooperation to
ensure that all cases are covered in order to protect the
public and where most disagreements can be settled at
monthly meetings among a much smaller group of law
enforcement officials. As Anne Milgram, former New

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Jersey Attorney General and current
Senior Fellow at the Center, explained,
“On issues that we cared deeply about,
particularly violence, we would all sit in
a room together and we would simply
divide up the cases and it sounds a little
bit unusual, but…everybody would be
at the table—the head of the FBI, the
head of the DEA, the head of the ATF,
or their designates, and the State AG
and the local prosecutor—and we would
say, ‘This neighborhood is a problem. The
DEA is the furthest along in a case; let’s
give them the case.’”
The third and final panel,
“Centralization and Cooperation: Is
Strong Central Authority Necessary or
Effective?” addressed the issue previewed
by keynote speaker Fitzgerald: the
relationship between Main Justice and
the United States Attorneys’ Offices.
The panel debated the pros and cons of
disparity, standardization, supervision,
control, and specialization, seldom coming
to an agreement on when either centralized or local
control is preferred or necessary. For example, while
defense attorney Elkan Abramowitz championed “a
consistent national policy” in fraud cases, Daniel Richman,
professor of law at Columbia Law School, was wary of
centralization because “it is just going to naturally skew
against zeal.” Ultimately, it was generally agreed that
prosecutors on the ground rarely appreciate supervision
but that in some cases it was warranted (in particular
with death penalty and terrorism cases), and that Main
Justice could serve as a useful resource for those districts
that did not often see a particular type of case. However,
standardization may be unachievable. “I think [disparity
between districts] is just the reality of it,” noted Roscoe
C. Howard Jr., former United States Attorney for the
District of Columbia. “I think it is the nature of the beast
they have created. Main Justice is there; I looked at them
as a resource, but if you are going to put me in a place
like the District of Columbia to enforce the laws, let me
enforce the laws.”
Further information, the program, and videos
from the conference can be found at http://www.
law.nyu.edu/centers/adminofcriminallaw/events/
allocatingprosecutorialpower/index.htm.

1

2

3

4

5

6

7

8

9

1 Patrick J. Fitzgerald, the United States Attorney for the Northern
District of Illinois
2 Michael A. Battle, partner, Fulbright & Jaworski LLP; former Director,
Executive Office for United States Attorneys, United States Department of
Justice, United States Attorney for the Western District of New York, and
Federal Public Defender
3 Barbara D. Underwood, Solicitor General of the State of New York; former
Acting Solicitor General and Principal Deputy Solicitor General of the United
States, Counsel to the United States Attorney and Chief Assistant, United
States Attorney’s Office, Eastern District of New York, executive official and
attorney in the Queens, Brooklyn, and Manhattan District Attorneys’ Offices,
Professor of Law, Yale Law School
4 Rachel E. Barkow, Professor of Law, NYU School of Law, and Faculty
Director, Center on the Administration of Criminal Law
5 Tracey L. Meares, Deputy Dean and Professor of Law, Yale Law School
6 Roscoe C. Howard Jr., Partner, Andrews Kurth LLP; former United States
Attorney for the District of Columbia, Assistant United States Attorney in the
United States Attorney’s Office for the District of Columbia and for the
Eastern District of Virginia, and Associate Independent Counsel
7 The Honorable Sterling Johnson Jr., United States District Judge, Eastern
District of New York; former Special Narcotics Prosecutor for the City of
New York
8 John Kroger, Attorney General of the State of Oregon; former Assistant
United States Attorney, United States Attorney’s Office, Eastern District of
New York
9 John W. Suthers, Attorney General of the State of Colorado; former United
States Attorney, District of Colorado, and District Attorney, Colorado Springs,
Colorado

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Federal Sentencing at a Crossroads:
A Call for Leadership
By David B. Edwards (’08)

T

he Center joined with the Federal Bar Council to co-sponsor a panel, “Federal
Sentencing at a Crossroads: A Call for Leadership,” to discuss various questions on
the future of federal sentencing policy.

them to be tough on crime. Anthony Ricco, a criminal
defense attorney, noted a question that appears to have
been lost in this morass of politics: what sentence is
sufficient but not greater than necessary? “There is an
education process that needs to go on in our country
about what we’re doing to people when we’re reconciling
the harm that is done to a victim against a measure of
punishment that is necessary in order to bring about the
lauded goals of Congress,” Ricco said.
The Honorable William K. Sessions, Chief Judge,
United States District Court for the District of Vermont,
and Chair, United States
Sentencing Commission,
disputed the impression
that the Commission was
a body responsive only to
Congress. While recognizing
the reality of and frustration
with directives from Congress,
he defended the general
autonomy, dedication, and
utility of the Commission.
From left: Rachel E. Barkow; the Honorable John Conyers Jr., United States Representative, 14th District, Michigan,
and Chairman, Committee on the Judiciary, United States House of Representatives; Anthony Ricco; the Honorable
Judge
Sessions noted that
William K. Sessions; Alan Vinegrad; Jonathan J. Wroblewski
the Commission attempts to
represent and respond to a range of actors by listening to
The Honorable John Conyers Jr., United States
judges, practitioners, victims, and law enforcement and
Representative, 14th District, Michigan, and Chairman,
by reviewing offender characteristics. In particular, Judge
Committee on the Judiciary, candidly discussed “the
Sessions highlighted the Commission’s upcoming work,
highly emotional, political connotations that are attached
including the inclusion of drug treatment programs in
toward even discussion of ” sentencing issues and the
sentencing and the publication of studies on offender
practical difficulties associated with reform. In particular,
characteristics and how they could be taken into account
he discussed the commandeering of the Sentencing
in sentencing.
Commission by Congress through statutory orders to
set specific guidelines for the sake of headlines showing

The Honorable John Gleeson, United States District
Judge, Eastern District of New York, moderated the panel.
While acknowledging the numerous sentencing debates
of the day, he asked the panel to focus on the “excessively
punitive sentencing policy for non-violent drug offenders”
that has become a “national crisis in dire need of
intervention.” The discussion that followed highlighted
the tumultuous relationship between Congress and the
United States Sentencing Commission, the role politics
has played in the Sentencing Guidelines, and the impact
these relationships have had on defendants.

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10

SCOTUS

R

ead summaries of all 26 decisions from the 2009-10 Supreme Court Term in the area of
criminal law; these rulings decided questions relating to the First, Fifth, and Sixth Amendments as well as Statutory Interpretation, Federal Review, Sentencing, and Due Process.

1. First Amendment
United States v. Stevens

130 S. Ct. 1577 | Decided April 20, 2010
By Jake Tracer (’12)
Stevens, who sold videos of illegal dogfighting, was
convicted under 18 U.S.C. § 48, a statute criminalizing
the creation, sale, or possession of various depictions
of animal cruelty. The statute was enacted to curb the
proliferation of “crush videos” in which women crush
household animals to death, often while wearing highheeled shoes to appeal
A statute criminalizing
to a specific sexual fetish.
Because only the women’s
the creation, sale, or
feet are visible in the
possession of various
videos, the legislation was
depictions of animal
cruelty is unconstitution- targeted at deterring the
crime by outlawing its
ally overbroad.
depiction. The Court, in an
8-1 decision written by Chief Justice Roberts, struck down
§ 48 as overbroad and invalid under the First Amendment.
Affirming the Third Circuit, the Court characterized
§ 48 as an explicit regulation of expression based on
content, thereby finding the statute presumptively invalid.
Under a First Amendment challenge, a statute can be
overturned as overbroad if a substantial number of its
uses would be unconstitutional; the Court analyzed § 48
in this context. The majority determined that the statute
had many unconstitutional applications. The text did not
require the depiction in question to be cruel; instead, it
applied to a list of depictions that included wounding or

killing an animal, a list that could apply to perfectly legal
hunting or commercial slaughtering activities. Further,
reasoned the majority, while the statute also required that
the action in question be illegal, it did not stipulate that
it must be illegal for a specific reason, thus encompassing
state hunting and livestock regulations that are not at
all connected to animal cruelty concerns. Reading the
statute’s exceptions clause narrowly, the Court thus found
that a substantial number of constitutional depictions of
animal wounding and killing would be criminalized by
§ 48, making it unconstitutionally overbroad. The majority
declined to consider whether a more exactly worded
statute explicitly outlawing only depictions of animal
cruelty would likewise be unconstitutional.
Justice Alito dissented, interpreting § 48 only
to apply to depictions of animal cruelty without
encompassing the general applications the majority
feared. He also found the core of § 48 to be
constitutionally valid as a content-based restriction of
speech under the reasoning the Court used to find child
pornography outside the scope of the First Amendment
in New York v. Ferber. Just as the Court treated child
pornography in Ferber, Justice Alito found restrictions
on depictions of crush videos and dogfighting to be valid
because (1) creating the depiction involves committing
a crime that (2) cannot effectively be deterred without
targeting the distribution of the depictions, and
(3) the value of the speech in the depictions is low.
Justice Alito would thus read § 48 to allow these
constitutional restrictions.

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2. Fifth Amendment
Berghuis v. Thompkins

130 S. Ct. 2250 | Decided January 20, 2010
By Rebecca A. Welsh (’12)
Reversing the Sixth Circuit opinion below, the court, in
a 5-4 decision, held that a suspect must affirmatively
invoke his right to silence during or before questioning
and that such a right to remain silent is not invoked when
the suspect merely remains silent or does not cooperate.
Justice Kennedy, writing for the majority, reasoned that
if a suspect answers a question, even with a one-word
response and even after hours of interrogation, that
response constitutes a waiver of the right to remain silent
and is admissible as evidence.
In the instant case, Thompkins had been given his
Miranda warnings and was questioned by the police
for nearly three hours, during which time he was
almost completely nonresponsive. Near the end of the
interrogation, an officer asked Thompkins if he prayed to
God to forgive him “for
A suspect must affirmashooting that little boy
tively invoke his right to
down.” Thompkins said
silence during or before
yes, but refused to confess
questioning, and such a
in writing. This response
was used to convict
right to remain silent is
Thompkins at trial.
not invoked when the
Citing Davis v.
suspect merely remains
U.S., a 1994 Supreme
silent or does not
Court case holding
cooperate.
that a suspect must
unambiguously invoke his right to counsel, the majority
found no reason to treat the invocation of the rights to
counsel and to silence differently. Such a ruling, asserted
Justice Kennedy, would minimize the need for law
enforcement to determine a suspect’s true intentions
and would thereby decrease police confusion. The Court
found it determinative that “Thompkins did not say that
he wanted to remain silent or that he did not want to talk
with the police.” The Court also held that the police are
not required to obtain an explicit waiver of the right to
remain silent, but that the suspect need only be informed
of and understand his rights. Justice Kennedy concluded
that Thompkins had understood his rights and had made
choices that culminated in a confession.
In a dissent joined by Justices Stevens, Ginsburg,
and Breyer, Justice Sotomayor expressed concern over

what she viewed to be a sweeping opinion that did away
with decades of Miranda precedent and placed a burden
on prosecutors to prove that a suspect had waived his
right to remain silent. The dissent also attacked what it
categorized as the “magic words” suspects would now be
forced to use in order to invoke their rights and pointed
to the potential for abuse by police.
Florida v. Powell

130 S. Ct. 1195 | Decided February 23, 2010
By Rebecca A. Welsh (’12)
By a vote of 7 to 2, the Supreme Court overturned the
Florida State Court’s opinion, holding that the Miranda
warnings given to Kevin Powell were adequate despite the
fact that they did not explicitly inform him of his right
to have an attorney present during questioning. Writing
for the majority, Justice Ginsburg first rejected Powell’s
argument that the Court did not have jurisdiction to
hear the case, finding that the Florida Supreme Court’s
opinion rested primarily on federal constitutional
precedent. The majority held that Miranda requires only
that law enforcement clearly inform suspects of their
rights. Although in the instant case, reasoned Justice
Ginsburg, the Tampa Police Department’s written
warnings—informing a suspect that he has the right to
an attorney before questioning and a right to consult a
lawyer at any time—may have been less than ideal, they
nevertheless reasonably informed Powell of his right to
have an attorney present.
In a dissenting opinion, Justice Stevens first
accepted Powell’s argument that under the adequate and
independent state grounds doctrine, the Court did not
have jurisdiction to overturn the Florida Supreme Court’s
opinion. In part II of his dissent, joined by Justice Breyer,
Justice Stevens stated that he would have found the
Miranda warnings in this case to be inadequate because
they led the suspect to believe that he could only have an
attorney present before, and not during, questioning.
Maryland v. Shatzer

130 S. Ct. 1213 | Decided February 24, 2010
By Jake Tracer (’12)
In a majority opinion written by Justice Scalia, the Court
established new limits to the protections offered by
Edwards v. Arizona, a 1981 case that created a presumption
that Miranda waivers obtained after a suspect requests

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an attorney are invalid because of the risk the waiver was
produced by coercion. Once the suspect has been released
from police custody, according to the Court’s new ruling,
a 14-day limit on the Edwards presumption begins, after
which the police are free to re-interrogate.
While in prison for an unrelated offense, Shatzer
was questioned in 2003 for sexual child abuse, but the
investigation was closed shortly after he requested an
attorney. He was released back into the general prison
population but was questioned again two and a half
years later, at which point he signed a Miranda waiver,
made inculpatory statements, and was prosecuted. The
Maryland Court of Appeals reversed Shatzer’s conviction,
holding that Shatzer’s confession should be dismissed
because Edwards protected it, and that even if Edwards
contained an exception for breaks in custody, Shatzer’s
release into prison did not constitute such a break.
In an opinion written by Justice Scalia, the
majority applied a cost-benefit analysis to determine the
boundaries of the Edwards presumption; as a judicial
rule—as opposed to a constitutional right—Edwards
only applies when its benefits outweigh its costs. The
Edwards presumption, reasoned the majority, conserves
judicial resources and preserves the integrity of a suspect’s
choice, but, most important, it prevents police from using
the isolation of interrogation practices to intimidate a
suspect. The Court found that allowing the Edwards
presumption to carry too far beyond the release of custody
would prevent the use of legitimate, voluntary confessions
and would deter police from trying to obtain them, at
which point the policy’s costs would outweigh its benefits.
Deciding that law enforcement officials need a bright-line
rule around which to organize their investigations, the
Court assigned a 14-day window for which Edwards will
apply after a suspect is released from custody. According

The
Center
in the
News

to the Court, two weeks is “plenty of time” for a suspect
to return to normal life, consult with friends and counsel,
and for the coercive effects of police custody to wear off.
The Court next considered whether Shatzer’s release
into the general prison population constituted a break
in custody that would begin his 14-day Edwards window.
Because Shatzer was not
Miranda waivers obtained
alone with his accusers,
14 or more days after a
because his daily routine
consisted of his life in
suspect requests an
attorney are presumptively prison, and because
his detention was not
valid and police are then
related to his invocation
free to re-interrogate.
of his Miranda rights,
the majority found Shatzer’s release back into prison
population to be a break in custody. As such, found the
Court, Edwards no longer applied and his inculpatory
statements could be used at trial.
Justice Thomas concurred in the judgment, but
argued that the 14-day time limit was both arbitrary
and unnecessary; he would not have found the Edwards
presumption to extend even 14 days after custodial release.
Justice Stevens also filed a concurrence objecting
to the majority’s 14-day rule, but on different grounds.
Concerned that the majority’s holding will allow police
to re-interrogate suspects without providing them with
requested lawyers simply by waiting two weeks, Justice
Stevens advocated for setting the end of a suspect’s
Edwards protection at the moment police provide the
promised counsel. Additionally, Justice Stevens argued
that suspects in prison are unlikely to be able to take
advantage of the two-week window because their lives
are scheduled and guards, whom many prisoners associate
with the police, can intimidate them.

130 S. Ct. 1855 | Decided May 3, 2010
By Jake Tracer (’12)
Holding that the Michigan Supreme Court had
reasonably applied federal law in denying respondent
Lett’s double jeopardy claim, the Court rejected Lett’s
request for a federal writ of habeas corpus. In a 6-3
majority opinion written by Chief Justice Roberts, the
Court concluded that the Sixth Circuit had “misapplied”
the standard of review on federal habeas writs as
delineated by the Antiterrorism and Effective Death
Penalty Act of 1996, which allows a federal court to
grant a writ of habeas corpus only when the state court’s
decision amounts to “an unreasonable application of…
clearly established Federal law.” The Court found that the
Act’s deferential standard of review as applied to Lett’s
claim precluded a federal court from questioning the state
trial judge’s declaration of a mistrial.
Lett’s original trial for first-degree murder lasted
just nine hours. After the jury spent about four hours
deliberating without reaching a verdict, the judge
declared a mistrial and scheduled a new trial date. Lett’s
second trial resulted in a conviction for second-degree
murder. Lett appealed, arguing that because the trial
judge erroneously declared a mistrial without “manifest
necessity” as required by United States v. Perez, his second
trial was in violation of the Double Jeopardy Clause. The
Michigan Court of Appeals reversed Lett’s conviction, but
the Michigan Supreme Court found the trial judge had
exercised appropriate discretion.
Lett then filed his federal habeas claim. Both the
district court and the Sixth Circuit found for Lett. The
Supreme Court reversed, holding that the Michigan

The
Center
in the
News

Supreme Court had correctly applied federal law. The
majority reasoned that under Arizona v. Washington, the
“manifest necessity” standard created by Perez requires that
an appellate court grant great deference to the trial judge
who is in the best position to determine whether a jury
is truly deadlocked. Because trial judges do not have to
explain such decisions, it was reasonable for the Michigan
Supreme Court to conclude that in this case, the trial
judge exercised sound discretion.
Justice Stevens, joined by Justices Breyer and
Sotomayor, dissented, arguing that the trial judge made
several errors in determining that the jury was deadlocked
that reflected her failure to exercise the requisite “sound
discretion.” Because his first trial was terminated without
“adequate justification,” reasoned the dissent, Lett’s second
trial violated his constitutional rights under the Double
Jeopardy Clause.

3. Sixth Amendment
Berghuis v. Smith

130 S. Ct. 1382 | Decided March 30, 2010
By Jake Tracer (’12)
In a unanimous opinion written by Justice Ginsburg,
the Court reversed the Sixth Circuit Court of Appeals,
concluding that it had erred when it held that Smith’s
convicting jury did not represent a fair cross section of his
community. Smith had filed a federal habeas petition after
the Michigan Supreme Court found that his evidence
did not show that African Americans were systematically
excluded from juries in Kent County, Michigan. Under
the Antiterrorism and Effective Death Penalty Act of

“When any industry, company, or entity fails to police itself,
it risks forfeiting control to outside authorities. Here, by
abdicating this responsibility, baseball created a void that
was filled first by Congress and now by criminal prosecutors.”
Executive Director Anthony S. Barkow arguing in Newsday that Major League Baseball
is equally at fault as former pitcher Roger Clemens for the sport reaching the point that
Clemens was indicted for lying to Congress.
http://www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__news__media/
documents/documents/ecm_pro_066823.pdf.

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1996, habeas relief could only be sustained if the Michigan
Supreme Court had issued an opinion contrary to “clearly
established Federal law.”
Smith, an African American convicted by an allwhite jury of second-degree murder, objected to the
method by which jury members were assigned in Kent
County. At the time of Smith’s trial, the County assigned
prospective jurors to district courts first; the remaining
people were then sent to the countywide Circuit Court
where felony cases were tried.
Under Duren v. Missouri, Smith had to show that
a “distinctive” group was underrepresented in jury venires
and that the underrepresentation was caused by “systematic
exclusion” in the jury-selection process. The Michigan
Supreme Court considered three tests for determining
underrepresentation, but the Sixth Circuit held that the
comparative disparity test—the test finding that African
Americans in Kent County were 18 percent less likely
to be on the jury-service list—should always be used to
measure underrepresentation when the group is a small
fraction of the population. The Sixth Circuit also reversed
the Michigan Supreme Court’s determination that the
underrepresentation was not caused by the order by which
jurors were assigned to courts.
The Court found the Sixth Circuit to have erred
because Duren did not require the use of a single test to
determine underrepresentation and because Smith did not
prove that the assignment order had a significant effect on
the number of African Americans in his jury pool. Thus,
the Michigan Supreme Court’s opinion was not contrary
to any “clearly established” law previously created by the
Supreme Court.
Padilla v. kentucky

130 S. Ct. 1473 | Decided March 31, 2010
By Rebecca A. Welsh (’12)
Writing for the majority, Justice Stevens, joined by Justices
Breyer, Kennedy, Ginsburg, and Sotomayor, reversed
the Kentucky Supreme Court’s decision and held that
the Sixth Amendment’s effective-assistance-of-counsel
guarantee requires a defendant’s lawyer to inform him of
the risks of deportation involved in a plea and, thus, that
petitioner Jose Padilla had sufficiently alleged his claim.
The Court did not reach the issue of whether Padilla is
entitled to relief, but remanded the case to state court to

determine if the petitioner has been prejudiced as a result
of ineffective counsel.
Padilla had been living in the United States for
40 years prior to pleading guilty to transporting a large
quantity of marijuana. Padilla maintained that his counsel
failed to inform him of the deportation risks associated
with the plea and in fact
The Sixth Amendment’s
had assured him that
because of the duration
effective-assistanceof his residence in the
of-counsel guarantee
United States, he would
requires a defendant’s
not be deported. Padilla
lawyer to inform him of
claimed that had he
the risks of deportation
known
of the risks, he
involved in a plea.
would have chosen to
go to trial. Denying relief, the Kentucky Supreme Court
held that the Sixth Amendment right to effective counsel
does not include protection against erroneous deportation
advice that is merely a “collateral” result of the conviction.
Justice Stevens reasoned that changes in immigration
law, such as the inevitability of deportation for a “vast
number” of convicted immigrants, as well as the
decreasing discretion of judges in this arena, necessitate
viewing the risk of deportation as a central aspect of the
penalty for noncitizens convicted of crimes. In finding for
Padilla, Justice Stevens applied Strickland v. Washington.
He reasoned that Strickland’s guarantee of “reasonable
professional assistance” does not rest on a distinction
between direct and collateral consequences. Moreover, he
found that because deportation’s unique tie to the criminal
process blurs the line between direct and collateral
consequences, the appropriateness of such a distinction
need not be decided in Padilla’s case.
Pointing to evidence of professional norms in favor
of counseling clients about the risk of deportation, the
clarity of the deportation risk associated with a guilty
plea in Padilla’s case, and the plainly erroneous nature of
counsel’s advice, Justice Stevens found that Padilla’s claim
satisfied the first prong of the Strickland test and that
his counsel’s assistance fell “below an objective standard
of reasonableness.” Justice Stevens remanded the case to
state court for a determination as to Strickland ’s second
prong: whether there was “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Concurring in the decision, Justice Alito, joined by
Chief Justice Roberts, agreed that providing incorrect

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advice or misleading a client constitutes ineffective
assistance of counsel under Strickland. However, the
concurrence would have held that counsel’s duty extends
only so far as not to provide misinformation and to
inform the client of possible adverse immigration
consequences. Justice Alito further argued that to
require counsel to advise about specific possible adverse
immigration effects only in cases where such immigration
consequences are clear would create uncertainty and
would lead to unnecessary litigation.
Justice Scalia, joined by Justice Thomas, dissented.
Justice Scalia, like Justice Alito, argued the impracticality
of requiring defense attorneys to provide immigration
advice. Furthermore, the dissent argued that the Sixth
Amendment’s guarantee of effective assistance of counsel
extends only to the defense against criminal prosecution;
it does not go so far as to demand that attorneys
inform their clients of the adverse collateral effects of
convictions—a guarantee best left to statutory provisions.
Smith v. Spisak

130 S. Ct. 676 | Decided January 12, 2010
By Jake Tracer (’12)
In a majority opinion written by Justice Breyer, the
Court rejected two federal habeas claims, reversing the
Sixth Circuit and reinstating Spisak’s capital sentence.
Respondent Spisak argued that two constitutional
errors prevented him from receiving life imprisonment
for the three murders and two attempted murders
he was convicted of committing. First, he claimed
the jury instructions during the penalty phase of his
trial erroneously directed jurors to consider factors in
mitigation only if they unanimously approved of them.
Second, he claimed that his counsel’s closing argument
during the penalty phase was inadequate.
The Court evaluated Spisak’s first claim based on
the standard set out in Mills v. Maryland that held
that each juror must have the opportunity to consider
each mitigating circumstance in a capital case. The jury
instructions found faulty in Mills required the jury to
decide on each mitigating circumstance unanimously
and then only to consider those mitigating factors
when comparing them to the aggravating factors for
sentencing purposes. However, the Court noted that the
jury instructions in Spisak’s trial only required unanimity
in the decision that the aggravating factors outweigh the

mitigating factors. The instructions offered no guidance
as to how to determine which mitigating factors to
consider, leaving open the possibility that they need
not be unanimous. As such, according to the Court, the
instructions in Spisak’s trial did not suffer from the same
constitutional error as those in Mills.
The Court assessed Spisak’s second claim—that his
counsel’s closing argument during the penalty phase
of his trial was so inadequate that it violated the Sixth
Amendment—under Strickland v. Washington, which
required Spisak to show both that his lawyer was
objectively unreasonable and that the outcome would
have been different had a reasonable closing argument
been made. The Court only considered the second prong
of the test, finding that even if there was an error, it did
not affect the outcome of the jury’s decision for three
reasons. First, the sentencing phase of the trial took place
immediately after the guilt phase, making the details
of Spisak’s crimes fresh in the jurors’ minds. Second,
testimony of Spisak’s mental illness was also fresh in the
jurors’ minds, thereby minimizing the damage incurred
when Spisak’s counsel did not bring it up in his closing.
Third, Spisak’s attorney did attempt to appeal to the jurors’
mercy and humanity.
Justice Stevens filed an opinion concurring in part
and in the judgment. He argued that both of the errors
that Spisak alleged did occur but that neither swung the
jury, thus making them harmless.
Wood v. Allen

130 S. Ct. 841 | Decided January 20, 2010
By Rebecca A. Welsh (’12)
Writing for a 7-2 majority, Justice Sotomayor held that
counsel’s decision not to introduce evidence of petitioner
Wood’s mental impairments did not amount to ineffective
assistance of counsel. The Court denied habeas relief
to Wood, who was sentenced to death in Alabama for
the murder of his ex-girlfriend, but left unanswered the
question of how to interpret the two provisions of the
Antiterrorism and Effective Death Penalty Act (“the
Act”) that govern challenges to state court findings.
The first relevant subsection of the Act provides
that a federal court may grant relief if the state court’s
decision “was based on an unreasonable determination
of the facts in light of the evidence presented in the
State court proceeding.” The second provision states

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that “a determination of a factual issue made by a state
court shall be presumed to be correct” unless the habeas
petitioner can, by clear and convincing evidence, rebut
such a presumption. Justice Sotomayor did not address
which provision would govern or how the two provisions
should be reconciled. The majority held that Wood’s
claim would fail under any construction of the statute;
even if the first provision alone would apply, the state
court’s determination that Wood’s attorneys’ decision
had been strategic rather than ineffective was not
“unreasonable.”
Justice Stevens, joined by Justice Kennedy, dissented,
arguing that the attorneys’ decision in this case was not
strategic in the real sense of the word. The decision, they
asserted, was clumsy and neglectful, as opposed to “a
conscious choice between two legitimate and rational
alternatives.”
4. Statutory Interpretation
Barber v. Thomas

130 S. Ct. 2499 | Decided June 7, 2010
By Rebecca A. Welsh (’12)
In a 6-to-3 decision, the Court upheld the Bureau of
Prisons’ method for calculating good time credit. Justice
Breyer, writing for a majority joined by Chief Justice
Roberts, Justices Alito, Scalia, Sotomayor and Thomas,
denied Barber’s argument that the Bureau of Prisons
should have calculated his good time credit on the

The
Center
in the
News

basis of the sentence imposed rather than on the time
actually served in prison. The majority, affirming the
Ninth Circuit’s decision below, reasoned that the Bureau’s
method for calculating good time credit reflected both
the purpose and the language of the statute. Justice Breyer
held that the Bureau’s reading of “term of imprisonment”
to mean time served gives the statute its most natural
reading. Justice Breyer found that to accept petitioner’s
interpretation would contravene Congress’s explicit goal
of awarding good beh avior at the end of each year for
that year’s behavior. Such an interpretation, reasoned
Justice Breyer, would also contradict the Sentencing
Reform Act, whose stated intention was to reward
inmates’ good behavior exhibited during the time actually
served.
Justice Kennedy, joined by Justices Ginsburg and
Stevens, dissented. The dissent would have accepted
neither the petitioner’s interpretation nor the Bureau’s.
Instead, it would have read “term of imprisonment” to
mean “the span of time that a prisoner must account for
in order to obtain release.” Effectively, such a reading
would lead to the same result as accepting petitioner’s
interpretation. Good time credits would be awarded
annually to shorten the next year of a prisoner’s sentence.
Justice Kennedy asserted that such a reading could be
applied uniformly throughout the statute and added that
the majority’s approach would inflict “tens of thousands
of years of additional prison time on federal prisoners
according to a mathematical formula they will be unable
to understand.”

“[L]ife without parole sentences fail to accomplish two of the
core purposes of criminal punishment: they neither deter nor
do they allow for the possibility of rehabilitation. Moreover, life
without parole sentences for juveniles fail to account for the fact
that offenders typically commit fewer crimes as they age. Thus,
life without parole sentences for juveniles can be extremely
costly, but without achieving commensurate benefits.”
Executive Director Anthony S. Barkow’s testimony submitted to the Pennsylvania House of
Representatives Judiciary Committee in support of legislation that would prohibit life without parole sentences for juvenile offenders.
http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__centers__center_
on_administration_of_criminal_law/documents/documents/ecm_pro_066627.pdf

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Bloate v. United States

Carachuri-Rosendo v. Holder; Escobar v. Holder

130 S. Ct. 1345 | Decided March 8, 2010
By Rebecca A. Welsh (’12)

130 S. Ct. 2577 | Decided June 14, 2010
By Rebecca A. Welsh (’12)

In an opinion written by Justice Thomas, the majority
held that time granted to prepare pretrial motions is
not automatically excludable from time calculated
for purposes of the Speedy Trial Act. Under the Act,
a defendant’s trial must begin within 70 days of his
arraignment or indictment, whichever occurs later.
Applying traditional canons of statutory interpretation,
the Court held that time may only be excluded from the
Speedy Trial Act calculation if, upon review, a district
court grants a continuance and determines that the time
taken to prepare the pretrial motions is in the interest
of justice. The Act states that delay resulting from
proceedings concerning the defendant from the “filing
of the motion to the conclusion of the hearing upon, or
other prompt disposition of, such motion” is automatically
excludable. The majority reasoned that according to the
text of the Act, time taken to prepare pretrial motions—as
in the case with Bloate—is not automatically excludable.
Justice Ginsburg concurred in the judgment. Justice
Alito, joined by Justice Breyer, filed a dissent. The dissent
argued that the decision ran contrary to the text and
legislative history of the statute and might lead to a
dismissal for Bloate based only upon the fact that his
attorney had successfully petitioned a judge to grant
him more time to prepare pretrial motions. Furthermore,
Justice Alito reasoned, it was pointless to require district
court judges to make an “ends of justice” finding, since
they will always exclude from Speedy Trial calculations
delay resulting from defendants’ own motions.

Carachuri-Rosendo, a lawful permanent resident,
was convicted of a second drug offense in Texas for
possessing a single tablet of Xanax, an anti-anxiety
medication, without a prescription. Carachuri-Rosendo’s
first offense had been for possession of less than two
ounces of marijuana. Although the second offense was a
misdemeanor under Texas law, federal authorities argued
in removal proceedings that it was an aggravated felony
under federal law and thus that Carachuri-Rosendo faced
mandatory deportation. Justice Stevens, writing for the
majority, held that Carachuri-Rosendo’s second offense
was a minor one that does not fall within the normally
understood meaning of “aggravated felony.” Moreover,
reasoned the majority, the text of the Immigration and
Nationality Act makes it clear that the starting point
of any deportation under the Act is the conviction for
an aggravated felony; Carachuri-Rosendo was never
in fact convicted of such a felony. Justice Stevens also
pointed to the importance of following federal courts’
procedural requirements that provide defendants with
the opportunity to challenge a prior conviction before
being sentenced based on a recidivist enhancement.
Finally, the court argued that it was extremely unlikely
that, in practice, Carachuri-Rosendo would ever have
been charged with a felony for his offense in federal court.
Justice Stevens held that aliens facing mandatory removal
under similar circumstances may now seek cancellation
of removal proceedings, a relief mechanism within the
discretion of the attorney general.

The
Center
in the
News

“When crime goes up, so should the number of cops on
the beat. The police know it. Politicians know it. Even
criminals know it. Yet, in the middle of the worst financial
crisis since the Great Depression, the Senate is debating
whether to put fewer cops on the beat to police fraud in
the mortgage and banking industry.”
Senior Fellow Anne Milgram (’96) and Faculty Director Rachel E. Barkow arguing in Politico
in favor of a role for state attorneys general in policing fraud in the mortgage and banking
industries, and against federal preemption of state regulation in this area.
http://www.politico.com/news/stories/0510/37148.html

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Justices Scalia and Thomas filed separate concurring
opinions. Justice Scalia argued that although recidivism
can be used as a factor in sentencing, a conviction for a
state misdemeanor is not the equivalent of a conviction
for an aggravated felony simply because recidivism
could have been used to extend the initial sentence. In
his dissent, Justice Thomas laid out two factors that
must be satisfied in order for an alien to face mandatory
deportation for a drug crime: not only must the offense be
“capable of punishment under the Controlled Substances
Act,” but it must also be a felony. The second requirement,
according to Justice Thomas, was not satisfied in this case.
Carr v. United States

130 S. Ct. 2229 | Decided June 1, 2010
By Rebecca A. Welsh (’12)
Reversing the Seventh Circuit Court of Appeals, the
Supreme Court held that the Sex Offender Registration
and Notification Act (SORNA), which mandates
punishment for sex offenders who travel “in interstate
or foreign commerce” and “knowingly” fail to register or
update their registration as offenders only applies to travel
that postdates its enactment. Petitioner Carr challenged
his conviction for violating SORNA, arguing that the Act
did not apply to him because the travel at issue took place
before the passage of the Act. Justice Sotomayor, writing
for a majority joined by Justices Stevens, Breyer, Kennedy,
and Chief Justice Roberts, rejected the government’s
argument that SORNA applies so long as the failure
to register, as opposed to the act of traveling, occurred
after the passage of the Act. In order for the Act to be
applicable, reasoned the majority, the offender must first
be legally obligated to register under SORNA; since no
sex offender was required to register before the Act was
passed, travel that occurred before its enactment cannot
subject an offender to liability. Relying on the text of the
Act—and, in particular, on the word “travels”—the Court
found that the “undeviating use of the present tense [was]
a striking indicator of its prospective orientation.” In
determining that the provision of SORNA at issue only
applies to post-enactment travel, the Court determined
that the overarching goals of the Act would not be
frustrated.
Justice Scalia filed a concurring opinion disagreeing
with the majority’s use of legislative history. Justice Alito,
joined by Justices Ginsburg and Thomas, dissented from
the opinion arguing that it would treat sex offenders

who traveled before the passage of the Act—and whose
very travel motivated the passage of SORNA in the first
place—differently from those who travel post-enactment.
The dissent also found the majority’s reliance on the use of
the present tense to be unpersuasive.
Dolan v. United States

130 S. Ct. 2533 | Decided June 14, 2010
By Rebecca A. Welsh (’12)
After pleading guilty to assault, Brian Russell Dolan
was ordered by a New Mexico district court to pay his
victim $250 per month. Because the court determined the
amount of restitution outside of the ninety-day deadline
specified by the Mandatory Victims Restitution Act of
1996 (“MVRA”), petitioner Dolan argued that it had
exceeded its authority. In a 5-4 decision written by Justice
Breyer, the Court upheld the lower court’s order, reasoning
that the court had acted within its authority because it
had determined within the deadline that it would order
some restitution and all that remained to be determined
after the ninety-day period had passed was the specific
dollar amount.
Justice Breyer, joined by Justices Alito, Ginsburg,
Sotomayor and Thomas, found that the type of deadline
specified by the MVRA is neither a “jurisdictional”
restriction (a rule that forbids a specific action after the
deadline has passed) nor a “claims processing” rule (a
limitation that specifies when motions or claims can be
filed). Reasoning that the statute was intended to benefit
victims and pointing to the fact that it specified no
sanction for missing the deadline, the Court held that the
ninety-day restitution deadline is a “time-related directive”
that permits judges to take action outside of the mandated
deadline. The Court left open the question of whether an
award of restitution with an undetermined amount was a
final decision for the purposes of an appeal.
Chief Justice Roberts dissented, joined by Justices
Kennedy, Scalia, and Stevens, arguing that the MVRA
was only a small exception to the overarching rule that
an imposed sentence is final. When a judge acts outside
of the narrow exception specified by the Act, the dissent
reasoned, the court has exceeded its authority.

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Holder v. Humanitarian Law Project

130 S. Ct. 2705 | Decided June 21, 2010
By Rebecca A. Welsh (’12)
Writing for a six-Justice majority, Chief Justice Roberts
rejected plaintiffs’ claim that the federal material support
statute, 18 U.S.C. § 2339B, prohibiting the provision
of material support to designated foreign terrorist
organizations, was unconstitutionally vague under the
Fifth Amendment and impinged upon First Amendment
rights of free speech and association. Chief Justice Roberts,
joined by Justices Alito, Kennedy, Scalia, Stevens, and
Thomas, held that the government may ban speech and
other types of advocacy for an officially designated terrorist
organization, even if the advocacy was directed toward the
group’s peaceable or humanitarian actions. All nine Justices
agreed that the statute was not unconstitutionally vague.
The plaintiffs sought to provide support to groups
designated as terrorist organizations by the U.S.
government, claiming that their support was directed only
toward the groups’ nonviolent and humanitarian activities,
such as training members to use the law for dispute
resolution and to appeal to government entities for aid.
On remand, the district court granted partial summary
judgment for the plaintiffs on vagueness grounds; the
Ninth Circuit affirmed.
As applied, the federal
The majority held
statute prohibiting the
that the statute did not
provision of material supcontravene the First
port to designated foreign Amendment’s protection
of free speech and
terrorist organizations
association as applied to
is not unconstitutionally
the plaintiffs, reasoning
vague and does not imthat the statute does not
pinge upon First Amendment rights of free speech prohibit independent
advocacy or punish mere
and association.
association, and that the
government had a sufficient interest in banning seemingly
harmless support because it can be used to further a
group’s terrorist activities.
Chief Justice Roberts stressed the opinion’s narrow
holding, emphasizing that independent advocacy is
still permissible and thus “any activities not directed
to, coordinated with, or controlled by foreign terrorist
groups” will not be subject to criminal prosecution.
Similarly, Chief Justice Roberts explained, speech
cannot be punished under the law unless it falls into “a
narrow category of speech to, under the direction of, or

in coordination with foreign groups that the speaker
knows to be terrorist organizations.” Finally, the majority
reasoned that because the executive and legislative
branches are best positioned to make determinations as
to what is needed to protect the country from terrorism
and what constitutes conduct that furthers terrorist aims,
courts should defer to their findings.
Justice Breyer, joined by Justices Ginsburg and
Sotomayor, filed a strong dissent that he read from
the bench. Though agreeing that the statute was not
unconstitutionally vague, Justice Breyer argued that
the majority’s holding was far from narrow and that by
finding prosecutable any conduct done “in coordination
with” a terrorist group, the majority created a slippery
slope. He also criticized the Court’s acceptance of
the government’s argument that the conduct at issue
furthers these groups’ violent aims and asserted that
the government had not met its burden of proof of
demonstrating that the statute served a compelling
government interest.
Johnson v. United States

130 S. Ct. 1265 | Decided March 2, 2010
By Rebecca A. Welsh (’12)
Johnson was convicted in Florida State Court of
possession of ammunition by a convicted felon and
was sentenced under the Armed Career Criminal Act
(ACCA). On appeal, Johnson argued that his prior battery
conviction did not constitute a violent felony according
to a Florida Supreme Court ruling. The Eleventh Circuit
rejected Johnson’s argument and held that the state law’s
definition of battery that included “touching or striking”
satisfied the element of force required for a crime to be a
violent felony under the ACCA.
Writing for the majority, Justice Scalia first found
that the definition of “violent felony” under the ACCA
was a question of federal law and that therefore the
Court was not bound by the Florida court’s interpretation
of its state statute. Justice Scalia agreed that according
to the Florida court, the state’s battery statute did not
constitute a “violent felony” under the ACCA. Pointing
to the dictionary definitions of the word “force” as well
as to the context of the ACCA, the Court held that the
state offense of battery, interpreted by the Florida court
to be satisfied by touching, “no matter how slight,” does
not necessarily rise to the level of violent, physical force
required by the ACCA.

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Justice Alito, joined by Justice Thomas, filed a
dissenting opinion arguing that the definition of battery
fits well within the meaning of “violent felony” under
the ACCA and that the Court’s holding would limit
the effectiveness and applicability of the ACCA. Justice
Alito reasoned that the absence of any language in the
text of the Act limiting the word “force” demonstrates
that Congress intended the ACCA to apply to Florida’s
felony battery statute. Further, reasoned the dissent,
because felonies not generally considered to be violent
can nonetheless result in violence, the term “violent felony”
should be given a broader meaning under the Act.
Magwood v. Patterson

130 S. Ct. 2788 | Decided June 24, 2010
By Rebecca A. Welsh (’12)
Petitioner Magwood was convicted of murder and
sentenced to death by an Alabama court. In response
to a habeas claim, the district court instructed the trial
court to consider mitigating evidence when resentencing.
After being sentenced again to death, Magwood filed
a second habeas petition. The Court limited its review
of Magwood’s claim to the following question: when a
defendant is resentenced after having obtained habeas
relief from a prior sentence, is a subsequent habeas petition
challenging the new sentencing judgment barred as a
“second successive” application under 28 U.S.C. § 2244?
Writing for a majority joined in full by Justice
Scalia and in large part by Justices Breyer, Sotomayor
and Stevens, Justice Thomas found that Magwood’s
subsequent claim was not so barred. The majority held
that once a prisoner obtains habeas relief and receives a
new sentence, the filing of a subsequent habeas petition
challenging the new sentence is not a “successive
claim” even if that challenge could have been raised in
response to the first judgment. Looking to the text of the
Antiterrorism and Effective Death Penalty Act, the Court
determined that the phrase “second or successive” applied
only to the (original) judgment challenged. Thus, a claim
challenging a subsequent judgment was not barred under
28 U.S.C. § 2244.
Justice Breyer, joined by Justices Sotomayor and
Stevens, concurred in the judgment. Justice Breyer
distinguished the Magwood holding from the Court’s
holding in Panetti v. Quarterman that involved an already
challenged state court judgment. Magwood, he reasoned,
concerned a subsequent state court judgment that had not

yet been subject to a habeas challenge. Justice Kennedy,
joined by Justices Alito, Ginsburg and Chief Justice
Roberts, filed a dissent arguing that a claim should be
barred when the petitioner had the opportunity to raise
the same challenge in response to a prior judgment and
failed to do so.
United States v. Comstock

130 S. Ct. 1949 | Decided May 17, 2010
By Rebecca A. Welsh (’12)
Reversing the lower courts’ decisions, Justice Breyer,
writing for a seven-Justice majority, held that under
the Necessary and Proper Clause of Article I of the
Constitution, Congress was authorized to enact 18 U.S.C.
§ 4248—a federal civil-commitment statute granting
the Department of Justice power to detain indefinitely a
mentally ill, sexually dangerous federal prisoner beyond
the date the prisoner would otherwise be released.
In upholding the constitutionality of the statute, the
majority applied a five-factor test. It reasoned that the
Necessary and Proper Clause confers upon Congress
the power to enact such a statute. Relying on the broad
authority granted by the Clause, Justice Breyer explained
that such an act is “rationally related” to Congressional
power to create and enforce criminal statutes that further
its enumerated powers. For example, Congress can take
steps to protect citizens who might be affected by a federal
prisoner’s release, such as those living in the communities
around federal
The Necessary and Proper
prisons. Furthermore,
Clause authorizes Congress
Congress has long
been charged with
to grant the Department of
overseeing mental
Justice the power to detain
health care provided
indefinitely a mentally ill,
to prisoners, reasoned
sexually dangerous federal
Justice Breyer, and
prisoner beyond the date the
§
4248 mirrors an
prisoner would otherwise
earlier
statute similarly
be released.
authorizing civil
commitment for former inmates deemed to be mentally ill
who continue to pose a threat to society.
Justice Breyer also found that the statute does not
violate the Tenth Amendment. He reasoned that the
statute does not infringe upon states’ sovereignty because
(1) powers granted to Congress by the Necessary and
Proper Clause are not reserved to the states, (2) the
statute enables states to take control of former inmates’

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care through the Attorney General, and (3) the statute
is limited in scope, applicable only to a narrow group of
prisoners. The majority left open the question of whether
the statute violates the Due Process Clause or any other
constitutional rights.
Justices Kennedy and Alito wrote separate
concurrences. Justice Kennedy was unpersuaded by the
Court’s broad construction of the Necessary and Proper
Clause and urged a more stringent reading of the “rational
relationship” at issue in this case as compared to the
“rational basis” test used in the due process context. Both
Justices Kennedy and Alito agreed that in the instant
case, the Necessary and Proper Clause did grant Congress
the authority to pass an act sufficiently related to its
enumerated powers.
In a dissent joined in part by Justice Scalia, Justice
Thomas criticized the majority’s five-factor test as
arbitrary and argued that the enactment of the statute
exceeded Congressional power under the Necessary and
Proper Clause.
5. Appeals and Collateral Attacks
Beard v. Kindler

130 S. Ct. 612 | Decided December 8, 2009
By Jake Tracer (’12)
In a unanimous opinion written by Chief Justice Roberts,
the Court held that discretionary state procedural rules
are not automatically inadequate under the adequate state
law doctrine prohibiting a federal court from considering
a writ of habeas corpus. Under Coleman v. Thompson, the
adequate state law doctrine requires federal courts to
reject a habeas claim rejected by state courts when the
state court’s decision “rests on a state law ground that
is independent of the federal question and adequate to
support the judgment.” The Court found that no inherent
factors in discretionary rules make them conflict with the
principles of Coleman.
Respondent Kindler was convicted of first-degree
murder in 1984 and the jury recommended capital
punishment. Kindler filed postverdict motions, but before
the court could consider them, he escaped and fled to
Canada. The court dismissed the motions, and when
Kindler was caught and extradited back to the United
States in 1991, a new trial court refused to consider the
motions’ merits. Kindler appealed, and the Pennsylvania
Supreme Court affirmed finding that dismissing the

motions under the state’s fugitive forfeiture rule did not
amount to an abuse of discretion. Kindler filed a federal
habeas claim and the Third Circuit considered the merits
of his complaints, holding that a state procedural rule
must be “consistently applied” in order to be an adequate
state ground and that Pennsylvania’s discretionary rule
thus did not qualify.
The Court disagreed, in large part because such a
holding would put states in an impossible bind wherein
they would have to choose between preserving either the
flexibility or finality of their judgments. Chief Justice
Roberts argued that most states would choose finality
to avoid the additional costs of federal review thereby
limiting the valuable discretion of trial judges. Just as
federal judges have broad discretion, reasoned the Court,
so too should their state counterparts.
Because the question presented was limited to the
issue of discretionary state procedures, the Court did not
go further in its ruling. However, Justice Kennedy filed
a separate concurring opinion joined by Justice Thomas
expanding on the policy implications involved in the case.
Justice Kennedy argued that new state procedures could
be exempted from the adequate state law doctrine to allow
for good-faith efforts to comply, but such a policy did not
affect Kindler’s claim; in no way does escaping and fleeing
the country reflect a good-faith effort to comply with
anything. Instead, Kindler’s case reflects the need to allow
state procedural rules to develop as case law does, so that
clear cases can be decided correctly even if the applicable
rule is not yet explicitly articulated.
Holland v. Florida

130 S. Ct. 2549 | Decided June 14, 2010
By Jake Tracer (’12)
In a 7-2 decision written by Justice Breyer, the Court held
that the one-year statute of limitations in the federal
habeas corpus statute is subject to equitable tolling and
that the Eleventh Circuit’s per se standard for determining
when attorney misconduct can trigger such tolling was
“too rigid.”
To receive equitable tolling of a statute of limitations,
a petitioner must show that he exercised due diligence in
pursuing his rights and that extraordinary circumstances
prevented him from meeting the deadline. Reasoning
that courts of equity must remain flexible in considering
the facts of a specific case, the majority rejected the
Eleventh Circuit’s general rule as too rigid and sided

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with other district courts around the country that have
found unprofessional attorney conduct to be extraordinary
circumstances even when not negligent. Also finding
that the district court erred in holding that Holland was
insufficiently diligent, the Court remanded the case so
the Eleventh Circuit could reconsider whether Holland’s
attorney created the requisite extraordinary circumstances.
Justice Alito filed a concurring opinion arguing for
a clearer standard by which attorney misconduct can be
considered extraordinary circumstances. He would hold
that negligence alone should not be enough, nor should
gross negligence since the line between them is difficult
to draw. The test, according to Justice Alito, should be
whether the attorney’s misconduct can be attributable
to the client; in this case, since Holland’s lawyer did not
follow his specific requests, Justice Alito found their
agency relationship to be broken.
Justice Scalia filed a dissent, arguing that federal habeas
law should not allow equitable tolling of its statute of
limitations because Congress already set out specific tolling
provisions and did not mention equitable tolling. Further,
according to Justice Scalia, Holland should not be eligible
for equitable tolling even if it were allowed; since there is no
constitutional right to counsel for habeas proceedings and
Holland’s lawyer’s actions could be characterized as simple
negligence, Justice Scalia would have held that the lawyer’s
actions could be attributable to Holland. Justice Thomas
joined Justice Scalia on this point only.
United States v. Marcus

130 S. Ct. 2159 | Decided May 24, 2010
By Jake Tracer (’12)
Respondent Marcus was convicted for acts of forced labor
and sex trafficking committed between January 1999 and
October 2001. The statute that criminalized his conduct,
however—the Trafficking Victims Protection Act of
2000—did not take effect until October 2000. Marcus did
not raise the issue during his trial but did so on appeal
to the Second Circuit. Under Federal Rule of Criminal
Procedure 52(b), an appeals court can consider an issue
not raised at trial only if there was “plain error” affecting
the defendant’s “substantial rights.” The Second Circuit
reversed Marcus’ conviction on this ground, finding that
because there was a “possibility” that the jury found
Marcus guilty solely for conduct that was not yet criminal,
the conviction was unconstitutional.
The Court disagreed. In a majority opinion written

by Justice Breyer and joined by Chief Justice Roberts and
Justices Alito, Ginsburg, Kennedy, Scalia, and Thomas, the
Court held that the Second Circuit’s test violated two
tenets of plain error review. First, the Court interpreted
“substantial rights” to require there to be a reasonable
probability the error affected the trial’s outcome, a
standard with which the Court found the Second Circuit’s
“possibility” standard cannot be reconciled. Second, the
Court noted that while plain errors that affect a trial’s
fairness could be considered on appeal, errors that do not
affect the jury’s outcome do not cast doubt on a trial’s
fairness. Because the Second Circuit’s “possibility” standard
conflicts with this reasonable probability standard, the
Court remanded Marcus’ case to be reconsidered under the
correct plain error standard of review.
Justice Stevens dissented, arguing primarily that the
doctrine of substantial rights within plain error review has
become needlessly complicated. While he disagreed with
some of the Second Circuit’s reasoning, he would have
affirmed its judgment because the error allowed Marcus’
jury to convict him based on an incorrect belief that
lawful activity was in fact illegal. Justice Stevens reasoned
that “it does not take an elaborate formula to see” that
error affected a substantial right.

McDaniel v. Brown

130 S. Ct. 665 | Decided January 11, 2010
By Jake Tracer (’12)
In a per curiam decision, the Court reversed the Ninth
Circuit’s grant of a writ of habeas corpus because the
circuit court had misinterpreted and misapplied Jackson
v. Virginia—a case that entitles a state prisoner to federal
habeas relief if “no rational trier of fact” would have found
the defendant guilty considering the evidence presented
at trial. More than a decade after his conviction for sexual
assault, Brown commissioned a report that questioned
the prosecution’s use of DNA evidence in his trial.
Responding to his federal habeas petition, the district
court excluded the state’s DNA evidence and then applied
Jackson in order to overturn Brown’s conviction. The Ninth
Circuit affirmed the district court’s ruling.
Brown’s expert report noted two errors in the
prosecution’s use of DNA evidence during trial. First,
the state’s expert witness committed the “prosecutor’s
fallacy” by equating the probability of a random DNA
match between two people with the probability that the

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defendant was not the source of the DNA sample. Second,
the expert dramatically underestimated the likelihood that
Brown’s DNA matched that of his brother, who also could
have committed the crime.
Reversing the Ninth Circuit’s decision, the Court
reasoned that any Jackson analysis must evaluate all the
evidence that was before the trial court, not whether
improper evidence was admitted. Thus under Jackson, argued
the Court, Brown’s conviction would be affirmed regardless
of the existence of the new DNA report. Furthermore,
found the Court, even if the Ninth Circuit had been allowed
to consider the DNA report, Brown’s conviction should
still be affirmed because the report acknowledged that the
DNA sample found at the crime scene matches Brown’s,
thus providing powerful inculpatory evidence that a jury
could have properly used to convict. Additionally, argued the
Court, while Jackson requires a reviewing court to consider
all evidence “in the light most favorable to the prosecution,”
the Ninth Circuit failed to do so.
Justice Thomas filed a concurring opinion joined by
Justice Scalia criticizing the Court’s evaluation of the case
under the assumption that the DNA report had been
properly considered. Justice Thomas would have found
that Jackson claims consider all the trial evidence and
would have ended his analysis there.
6. Sentencing
Dillon v. United States

130 S. Ct. 2683 | Decided June 17, 2010
By Rebecca A. Welsh (’12)
Writing for a 7-1 majority, Justice Sotomayor held that
retroactive changes to the U.S. Sentencing Guidelines
are binding in sentence modification proceedings. She
reasoned that the statute’s text and narrow scope compel
rejection of petitioner Dillon’s argument that such
proceedings are similar in nature to other sentencing
proceedings and therefore deserve the same treatment
under United States v. Booker. Instead, Justice Sotomayor
found that § 3582(c)(2) permits only a narrow adjustment
to a final sentence and thus the Commission’s guidelines
are mandatory in this setting. The majority further held
that Congress explicitly gave the Commission full authority
to determine the scope of sentence reductions, a fact
made clear by the language of the statute that states that
a court can only reduce sentences consistent with the
Commission’s relevant policy statements.

Percy Dillon was sentenced to 262 months in prison
stemming from convictions relating to crack and powder
cocaine. His sentence was the minimum amount required
by the Sentencing Commission Guidelines then in place.
The Commission subsequently reduced the sentences
stipulated for the relevant offenses and Dillon moved
under 18 U.S.C. § 3582(c)(2) for a sentence reduction
according to the amended guidelines that were intended
to have retroactive effect. Dillon moved not only for the
two-level reduction allowed under the amended Guidelines,
however, but also for an additional reduction based on good
behavior in prison, contending that Booker’s holding that
the Commission’s Guidelines are not mandatory in normal
sentencing proceedings permitted such discretionary resentencing. Holding that Booker does not apply to sentence
modification proceedings under 18 U.S.C. § 3582(c)(2),
the district court granted only the two-level reduction
authorized under the amended Guidelines. The Third
Circuit affirmed and the Supreme Court agreed.
In upholding the lower court’s decision, Justice
Sotomayor held that because Congress delegated to
the Commission full authority to oversee resentencing
proceedings—a conclusion supported by the Sentencing
Reform Act in which Congress gave the Commission
power to decide whether to amend the Guidelines
and whether the amendments should have retroactive
effect—Booker’s constitutional holding did not apply to
proceedings under § 3582(c)(2). The Court found that
whereas in Booker the Sixth Amendment right to a jury
trial was directly implicated, in the instant case, the
sentence modification proceedings in question are not
compelled by the Constitution and do not implicate any
constitutional rights. The Court likewise refused to extend
Booker’s remedial finding that the Guidelines are advisory
to the context of resentencing proceedings that are
inherently more constrained and differ from the general
sentencing provisions at issue in Booker.
In his dissent, Justice Stevens argued that the court
should have extended Booker’s remedial holding to
sentence modification proceedings. He reasoned that
although Dillon did not have a constitutional right to
such proceedings, because Booker did away with a “fixed,
determinate sentencing regime based on mandatory
Guidelines,” its holding should be applicable to § 3582(c)(2)
proceedings. Justice Stevens also argued that by vesting
such absolute authority in the Sentencing Commission,
the Court violated separation of powers and unlawfully
delegated legislative power.

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Graham v. Florida

130 S. Ct. 2011 | Decided May 17, 2010
By Rebecca A. Welsh (’12)
Writing for the majority, Justice Kennedy, joined by
Justices Breyer, Ginsburg, Sotomayor, and Stevens, held
that the Eighth Amendment’s Cruel and Unusual
Punishments Clause prohibits a juvenile from being
sentenced to life in prison without parole (LWOP) for a
nonhomicide crime. Petitioner Terrance Jamar Graham
was sentenced by a Florida trial court to LWOP at
the age of 17 after the court revoked his probation for
an armed robbery he had committed at the age of 16.
Because Florida had abolished its parole system, Graham’s
only chance for release was executive clemency. The Court
of Appeals of Florida, First District, affirmed.
Applying the “categorical approach”—used in cases
such as Roper v. Simmons (finding the death penalty
unconstitutional for defendants sentenced for crimes
committed before the age of 18) where characteristics, as
opposed to crime types, are common among defendants—
to its analysis of the Eighth Amendment, the majority
first looked to societal standards as expressed in legislative
enactments and state
practice to determine
Juvenile life without parole
whether a consensus
sentences for nonhomicide
had emerged against
offenses violate the Eight
the sentencing
Amendment’s Cruel and
Unusual Punishments Clause. scheme. The Court
next applied its own
“independent judgment” to determine whether application
of a particular sentence to a categorical class of offenders
violates the Eighth Amendment.
Based on his survey of legislation and actual
sentencing practices, Justice Kennedy found a national
consensus against juvenile LWOP sentences for
nonhomicide crimes. Further, he concluded that
because juveniles are less culpable than adults, because
such defendants’ crimes are less morally reprehensible
than homicide, and because none of the goals of penal
law—i.e., retribution, deterrence, incapacitation, and
rehabilitation—is furthered by the imposition of a life
sentence for these defendants, juvenile LWOP sentences
are disproportionate to the offense without legitimate
purpose and therefore violate the Eighth Amendment’s
ban on cruel and unusual punishment. The majority did
not guarantee release for this class of defendants; rather,
it held that there must be “some meaningful opportunity”

for juveniles sentenced to life for nonhomicides to obtain
release before the end of their life terms.
Justice Thomas, joined by Justice Scalia and
joined in part by Justice Alito, dissented on the grounds
that the Court’s categorical approach should be reserved
exclusively for cases involving capital punishment.
Pointing to the fact that federal law permits the practice,
Justice Thomas argued that a national consensus against
the imposition of LWOP sentences for juveniles does
not exist.
Justice Alito, writing for himself, added a short
dissent to note that the Court’s opinion does not preclude
the possibility of term-of-years sentences without parole
for juvenile defendants who did not commit murder, so
long as those sentences are not for life.
Chief Justice Roberts filed a separate concurrence.
He would have avoided the creation of a new constitutional
mandate. Instead, he would have relied on the Court’s
“narrow proportionality” framework for noncapital cases and
its opinion in Roper v. Simmons to find that a defendant’s
juvenile status should play a central role in the sentencing
analysis. According to Chief Justice Roberts, although
Graham’s sentence was unconstitutional, a sentence of
LWOP should be a possibility for other juveniles who
commit more atrocious, nonhomicide crimes.
United States v. O’Brien

130 S. Ct. 2169 | Decided May 24, 2010
By Jake Tracer (’12)
In light of Congress’s 1998 amendment to
18 U.S.C. § 924(c) prohibiting the use of a firearm
while committing a violent or drug trafficking crime,
the Court reconsidered whether the classification of the
firearm as a machine gun constitutes an element of the
offense to be decided by a jury beyond a reasonable doubt
or a sentencing factor to be decided by a judge using a
preponderance of the evidence standard. In 2000, the
Court decided the question in Castillo v. United States,
holding that the machine-gun provision was an element
of the offense, but that case was decided under the statute
before Congress amended it.
Both the District Court and the First Circuit held
that the new statutory language did not explicitly establish
the machine-gun provision as a sentencing factor and that
under Castillo, it should still be considered an element
of the offense. In a majority opinion written by Justice
Kennedy, the Supreme Court agreed. Justice Kennedy’s

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opinion reconsidered the five factors the Court relied on
when determining congressional intent in Castillo: (1) the
language and structure of the statute, (2) legal tradition,
(3) the risk of unfairness to the defendant, (4) the severity
of the sentence involved, and (5) the legislative history.
As in Castillo, three of the factors clearly point toward
considering the machine-gun provision as an element of
the offense. First, legal tradition suggests that sentencing
factors typically describe the offender, while elements of
the offense typically describe the action taken; the use of a
machine gun during a crime indicates the latter more than
the former. Second, the Court in Castillo found a risk of
unfairness if the provision were read as a sentencing factor
because it could lead to conflict between a judge and jury,
and changes to the statute’s language do not affect that
potential dynamic. Third, the Court found that the large
sentencing disparity between brandishing a firearm (not
less than seven years) and a machine gun (not less than
thirty years) suggests the provision is more likely to be an
element of the offense. Finally, in the instant case, as in
Castillo, the legislative history does not speak on point. But
while the Court found this factor to be neutral in Castillo,
here it determined the silence to suggest that Congress did
not intend to implicitly reclassify the provision.
The Court also considered the three main changes
Congress made to the statute’s text. First, mandatory
sentences became mandatory minimums, a fact the Court
found to favor viewing the provision as an element of
the offense. Second, the statute is now triggered by mere
possession of a firearm, a change that the Court found to
have no impact on the question at hand because it was
an explicit response aimed at overturning the Court’s
decision in another case, Bailey v. United States. Third,
the statute now includes the machine-gun provision in a
separate subsection than the firearm offense; the Court
found this change to be largely cosmetic. Finding no
explicit evidence of Congress’s intent to reclassify the
provision, the Court affirmed the holding in Castillo.
While the majority opinion was unanimous, two
justices filed concurring opinions. Justice Stevens argued
that just as a jury is necessary to raise the ceiling on a
possible sentence, it should also be required to set the
permissible floor. He would have overturned the precedent
that allows judicial fact-finding to impose a sentence
greater than what is otherwise legally permitted. Justice
Thomas would have decided the case on constitutional
grounds rather than statutory; he advocated for the use of
a jury whenever either the floor or ceiling of a defendant’s
sentence is raised.

7. Due Process
McDonald v. City of Chicago

130 S. Ct. 3020 | Decided June 28, 2010
By Rebecca A. Welsh (’12)
In a decision written by Justice Alito, the Court held
that the Second Amendment right to bear arms in selfdefense is incorporated and applicable to the states via
the Due Process Clause of the Fourteenth Amendment.
The Court previously recognized such a right in District
of Columbia v. Heller, where the majority struck down a
ban on handguns and found that the Second Amendment
right to bear arms for self-defense in the home was a
fundamental one. Justice Alito reasoned that certain rights,
those that are “fundamental to the Nation’s scheme of
ordered liberty” or that are “deeply rooted in this Nation’s
history and tradition,” apply to the states through the
Due Process Clause of the Fourteenth Amendment.
In reaching his decision, Justice Alito pointed to the
fundamental nature of the right to self-defense. He
rejected Justice Thomas’s claim in concurrence that rights
are incorporated not through the Due Process Clause but
instead via the Privileges or Immunities Clause of the
Fourteenth Amendment.
In a dissent joined by Justices Ginsburg and
Sotomayor, Justice Breyer attacked the majority’s
characterization of the Second Amendment right
as a fundamental one, asserting that nothing in the
Amendment’s “text, history, or underlying rationale”
supports the conclusion that it is a crucial right that
should be incorporated through the Fourteenth
Amendment. Furthermore, Justice Breyer argued that the
majority’s view created various uncertainties for lower
courts that will be called upon to interpret the extent of
permissible gun regulation.
Justice Stevens also dissented, asserting that the
right to bear arms was not a “liberty” interest of the type
protected by the Due Process Clause. Justice Stevens
would have left to the states the “right to experiment”
so as to find the best solutions to the problems of gun
violence. Justice Scalia filed a separate concurrence
disagreeing with Justice Stevens’ contentions.

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Personnel

Anthony S. Barkow, Executive Director

Anthony S. Barkow was a
federal prosecutor for 12 years.
From 2002 through 2008,
he was an assistant United
States attorney in the United
States Attorney’s Office for
the Southern District of New
York, where he prosecuted some of the most significant
terrorism and white-collar criminal cases in the United
States. In 2005, Barkow was given the Attorney General’s
Award for Exceptional Service, the highest award
bestowed in the U.S. Department of Justice. From 1998
through 2002, he was an assistant United States attorney
in the United States Attorney’s Office for the District of
Columbia, where he prosecuted local and federal cases
involving homicides and other serious violent crimes,
domestic violence assaults and sexual abuse, international
narcotics trafficking, and drug and gun street crimes. For
two years before that, Barkow was a trial attorney in the
Attorney General’s Honors Program in the Office of
Consumer Litigation in the U.S. Department of Justice,
where he prosecuted white-collar criminal and civil cases
under various federal consumer protection statutes. During
his tenure in the government, Barkow tried more than 40
cases and briefed and argued more than 10 cases on appeal.
He previously served as adjunct clinical professor of law at
New York University School of Law. Barkow is a frequent
writer and commentator on criminal law issues, especially
those involving prosecutors, and has appeared on various
news channels and been quoted in a variety of print media.
In 2009, he testified before Congress regarding proposed
legislation that would prohibit former prosecutors from
serving as or working for corporate monitors in matters
on which they worked while in government service, and in
2010 he submitted testimony to the Pennsylvania House of
Representatives recommending that the state end juvenile
life without parole sentences. In 2008, he was a human
rights observer of the military commission hearings in
Guantánamo Bay, Cuba.

After graduating summa cum laude from the
University of Michigan (A.B. ’91) and teaching history
at Saint Ann’s School in Brooklyn Heights, New York,
Barkow graduated cum laude from Harvard Law School
( J.D. ’95), where he was Notes Office co-chair and
supervising editor of the Harvard Law Review. He served
as law clerk to the Honorable Thomas P. Griesa when
he was Chief Judge of the U.S. District Court for the
Southern District of New York.
Rachel E. Barkow, Faculty Director

Rachel E. Barkow is
professor of law at New
York University School
of Law. Her scholarship
focuses on criminal law, and
she is especially interested
in applying the lessons
and theory of administrative and constitutional law to
the administration of criminal justice. She has written
more than 20 articles that span a range of topics. She
has written several articles on sentencing, including the
relationship between modern sentencing laws and the
constitutional role of the criminal jury; federalism and the
politics of sentencing; the role of cost-benefit and risktradeoff analysis in sentencing policy; what institutional
model works for designing agencies that regulate criminal
punishment; the political factors that lead to guideline
and commission formation; and the flawed bifurcation
between capital and noncapital constitutional sentencing
jurisprudence. Professor Barkow has also explored in
numerous articles the role of prosecutors in the criminal
justice system. For example, she has analyzed how the
lessons of institutional design from administrative
law could improve the way prosecutors’ offices are
structured; she has looked to organizational guidelines
and compliance programs as a model for prosecutorial
oversight; and she has considered the increasing role
of prosecutors as regulators through the conditions
they place on corporations. Professor Barkow has also
explored larger structural questions of how criminal

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justice is administered in the United States. In a series
of major articles, she has explored the relationship
between separation of powers and the criminal law and
the relationship between federalism and the criminal
law. Barkow has also considered the role of mercy and
clemency in criminal justice, paying particular attention to
the relationship between administrative law’s dominance
and the increasing reluctance of scholars and experts to
accept pockets of unreviewable discretion in criminal law.
Barkow has been invited to present her work in
various settings. She has testified before the House
Subcommittee on Commerce, Trade, and Consumer
Protection regarding the proposed Consumer Financial
Protection Agency; before the U.S. Sentencing
Commission to make recommendations for reforming the
federal sentencing system; and before the Senate Judiciary
Committee at a hearing on the future of the federal
sentencing guidelines. She has also presented her work
on sentencing to the National Association of Sentencing
Commissions Conference, the Federal Judicial Center’s
National Sentencing Policy Institute, and the Judicial
Conference of the Courts of Appeals for the First and
Seventh Circuits. In addition, she has presented papers at
numerous law schools.
After graduating from Northwestern University
(B.A. ’93), Barkow attended Harvard Law School ( J.D.
’96), where she won the Sears Prize, awarded annually
to the two students with the top overall grade averages
in the first-year class. She served as a law clerk to Judge
Laurence H. Silberman on the United States Court of
Appeals for the District of Columbia Circuit and Justice
Antonin Scalia on the Supreme Court of the United
States. She was an associate at Kellogg, Huber, Hansen,
Todd, Evans & Figel LLP in Washington, D.C., from
1998 to 2002, where she focused on telecommunications
and administrative law issues in proceedings before the
FCC, state regulatory agencies, and federal and state
courts. Barkow took a leave from the firm in 2001 to
serve as the John M. Olin Fellow in Law at Georgetown
University Law Center.

Anne Milgram (’96), Senior Fellow

Anne Milgram (’96) is a
Senior Fellow at the Center.
Prior to joining NYU,
Milgram served as New
Jersey’s Attorney General
from June 2007 to January
2010, where she headed the
9,000-person Department of Law and Public Safety.
Milgram became Attorney General after serving from
February 2006 to June 2007 as First Assistant Attorney
General. As Attorney General, Milgram supervised eight
divisions and multiple commissions and boards, including
the Division of Criminal Justice, the Division of Law, the
Division of Consumer Affairs, the Bureau of Securities,
the Division of Civil Rights, the Juvenile Justice
Commission, the Division of Gaming Enforcement,
the Division of Highway Traffic Safety, the Racing
Commission, and the Division of Alcoholic Beverage
Control. Milgram also supervised the Division of the
New Jersey State Police and its 3,000 sworn members,
and the Camden Police Department.
Milgram served as the state’s chief law enforcement
officer, overseeing and directing the 21 New Jersey county
prosecutors and the approximately 30,000 state and local
law enforcement officers. She spearheaded investigations
into street gangs, public corruption, gun violence and
trafficking, securities fraud, and mortgage fraud. She also
implemented a statewide program to improve public
safety through prevention of crime, criminal justice
and law enforcement reform, and re-entry programs
and services. As Attorney General, Milgram oversaw
affirmative and defensive civil litigation for the state,
providing legal representation to all state departments
and agencies in approximately 25,000 civil matters each
year. She also served as a member of the U.S. Attorney
General’s Executive Working Group on Criminal
Justice and as a co-chair of the National Association of
Attorneys General Criminal Law Committee.
From May 2005 to January 2006, Milgram served as
counsel to United States Senator Jon S. Corzine, briefing
and advising the senator on issues of judicial nominations,
criminal justice, homeland security, technology, law
enforcement, and civil rights.
From January 2001 until May 2005, Milgram served
as a federal prosecutor in the Criminal Section of the
United States Department of Justice’s Civil Rights Division,
prosecuting complex international sex trafficking, forced

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labor, and domestic servitude human trafficking cases. She
also prosecuted hate crimes and official misconduct cases
nationwide. In 2004, Milgram was promoted to become the
lead federal prosecutor in the country for human trafficking
crimes. Milgram was awarded the U.S. Department of
Justice Special Commendation for Outstanding Service
in December 2004 and the U.S. Department of Justice
Director’s Award in September 2006.
Milgram began her prosecution career as an
assistant district attorney in the Manhattan District
Attorney’s office, where she served from September
1997 until January 2001. As an assistant district attorney,
Milgram prosecuted felony and misdemeanor cases from
investigation through indictment and trial. She handled
violent crime, domestic violence, child abuse, narcotics,
illegal gun possession, and white-collar cases.
Milgram graduated summa cum laude from Rutgers
College in 1992 with a degree in English and political
science, and received a master’s of philosophy degree in
social and political theory in 1993 from the University
of Cambridge in England. She received her law degree
from New York University School of Law in 1996 and
clerked for United States District Court Judge Anne E.
Thompson in Trenton, New Jersey, from 1996 to 1997.
Board of Advisors

The Board of Advisors does not directly oversee the Center’s
activities, including its litigation decisions. The views taken by
the Center, including those taken in litigation, are those of the
Center and should not be attributed to any member of the board.
Douglas A. Berman is William B. Saxbe Designated
Professor of Law at Moritz College of Law at Ohio State
University. One of the leading experts on sentencing in
the country, he is co-author of the Sentencing Law and
Policy: Cases, Statutes and Guidelines casebook (second
edition, 2008), has authored publications on a wide
variety of criminal law and sentencing topics, and is the
creator and sole author of the widely read and cited blog
Sentencing Law and Policy.
Paul D. Clement is a partner in the Washington, D.C.,
office of King & Spalding and heads the firm’s national
appellate practice. He served as the 43rd solicitor general
of the United States from June 2005 until June 2008 and
spent nearly eight years in various leadership positions in
the office. Clement also serves as an adjunct professor of
law at both NYU and Georgetown. He has argued more

than 50 cases before the Supreme Court and many of the
government’s most important cases in lower courts.
James Forman Jr. is professor of law at Georgetown

University Law Center. He teaches and writes in the areas
of criminal procedure and education law. He previously
worked at the Public Defender Service in Washington,
D.C., where he represented juveniles and adults in
serious felony cases, and served as training director for
new attorneys. He co-founded the Maya Angelou Public
Charter School, which combines education, job training,
counseling, mental health services, life skills, and dormitory
living for school dropouts and youth who have previously
been incarcerated.
Katherine A. Lemire is counsel to Raymond W. Kelly,

the Police Commissioner of the City of New York. She
previously was an assistant United States attorney in the
United States Attorney’s Office for the Southern District
of New York, where she primarily prosecuted public
corruption offenses, campaign finance fraud, and violent
gang cases involving racketeering, murder, and narcotics
trafficking. She also previously was an assistant district
attorney in the Manhattan District Attorney’s Office.
Jorge Montes is chairman of the Prisoner Review Board

of the State of Illinois. He has been chairman since 2004
and a member of the board since 1994. He also co-chairs
the American Bar Association’s Parole and Probation
Committee of the Criminal Justice Section. Previously,
Montes was a supervising litigation attorney for the Cook
County State’s Attorney’s Office and a spokesperson for
the Office of the Illinois Attorney General. He also has
been a member of the Illinois Department of Corrections
Board of Education.
Cristina Rodríguez is professor of law at New York

University School of Law. She teaches and writes in the
areas of constitutional law, immigration law, citizenship
theory, and language rights and language policy. Her
recent works include “Constraint Through Delegation”
(2010), “The President and Immigration Law” (2009)
(with Adam Cox), and “The Significance of the Local in
Immigration Regulations” (2008). She is a nonresident
fellow of the Migration Policy Institute, a term member
of the Council on Foreign Relations, and a former clerk
to Justice Sandra Day O’Connor.

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Maximo Langer, Scholar-in-Residence, 2010-11

The Center’s scholar-inresidence for academic year
2010-11 is Maximo Langer.
Langer is professor of law at
UCLA School of Law. He is
a visiting professor of law at
New York University School
of Law during the 2010-11 academic year. He writes
and teaches on domestic, comparative and international
criminal law and procedure. He received his LL.B. from
the University of Buenos Aires Law School (1995), where
he was editor of the University of Buenos Aires Law
Review, was awarded the Fundación Universitaria del Rio
de la Plata Fellowship, and graduated in the top 1% of his
class. He entered the LL.M. program at Harvard Law
School in 1998 and then switched to the S.J.D. program.
At Harvard, he was awarded several fellowships, including
the Edmond J. Safra Graduate Fellowship in Ethics
from the Harvard University Center for Ethics and
the Professions, a Fellowship of the Center for Studies
and Research in International Law and International
Relations from The Hague Academy of International Law,
and the Fulbright Fellowship.
While at the University of Buenos Aires, Professor
Langer served as a legal clerk in Argentinean Federal
District Court No. 2 and, after graduation, worked in
criminal defense as an associate (1994-97) and a partner
(1998) with Gottheil & Asociados in Buenos Aires.
Before leaving Argentina for Harvard, he also served as
director of the Non-Conventional Offenses Program at
the Institute for Comparative Studies in Criminal and
Social Sciences (1997-98) and worked as legal advisor to
the Commissions of Justice and Criminal Law under
Argentinean Congressman Jose Cafferata Nores (1998).
His teaching career began at the University of Buenos
Aires, where he served as a graduate teaching fellow, and
continued at Harvard, where he was a Teaching Fellow
under Professor Carol Steiker and a Byse-Rockefeller
Center Fellow.
Langer has published articles and book chapters in
English and Spanish on criminal law and procedure, and
his work has been translated to Chinese and Spanish. He
has given many presentations and seminars on various
aspects of criminal law and procedure in the United States,
Asia, Europe, and Latin America. His article “The Rise of
Managerial Judging in International Criminal Law” was
selected for the 2006 Stanford/Yale Junior Faculty Forum

in the Public International Law Category, and he won
the 2007 Hessel Yntema Prize by the American Society
of Comparative Law for “Most Outstanding Article
Published by a Scholar Under 40” in a recent volume
of the American Journal of Comparative Law. His article
“Revolution in Latin American Criminal Procedure:
Diffusion of Legal Ideas from the Periphery” was awarded
the 2007 Margaret Popkin Award by the Latin American
Studies Association (LASA) for “Best Paper on the Law”
presented at the XXVII LASA International Congress.
Sarah M. Nissel, Attorney

Sarah M. Nissel is an attorney at the Center. After
graduating from Yale University (B.A. ’03), she attended
New York University School of Law ( J.D. ’08), where she
was a Dean’s Scholar. Prior to joining the Center, she
worked as an associate at the law firm Morvillo,
Abramowitz, Grand, Iason, Anello & Bohrer, where
she focused on white-collar criminal litigation. She also
previously worked as an intern at The Innocence Project.
Jing-Li Yu, Law Clerk

Jing-Li Yu is a law clerk at the Center. He is the recipient
of a yearlong public interest fellowship from the law
firm Dewey & LeBoeuf LLP. He is a graduate of the
University of Chicago Law School ( J.D. ’10), received a
master’s degree in social sciences from the University of
Chicago (M.A. ’05), and graduated from the University of
Pennsylvania with a degree in economics (B.A. ’01).
Alison B. Miller, Intern

Alison B. Miller is an intern at the Center. She is a cum
laude graduate of Dartmouth College (B.A. ’10) with a
degree in government and history.

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Fellows

Much of the Center’s work is done by New York
University School of Law students who are chosen as
fellows after a competitive application process. The
Center’s current fellows are:
Class of 2011: Laura J. Arandes, Mahalia Annah-Marie

Center fellows have gone on to future employment
including clerkships on the United States Court of
Appeals for the District of Columbia Circuit, the United
States Court of Appeals for the Third Circuit, and the
United States District Court for the Southern District
of New York; the Department of Justice Office of Legal
Counsel; the United States Senate Judiciary Committee;
and major international law firms.
Janelle Pitterson, Administrative Assistant

Janelle Pitterson is the administrative assistant at the
Center.

Editor, Sarah M. Nissel ’08
Copyeditors, Laura J. Arandes (’11), David B. Mesrobian
(’12), and Alison B. Miller
Center on the Administration of Criminal Law
New York University School of Law
139 MacDougal Street
New York, NY 10012
prosecutioncenter@nyu.edu
www.prosecutioncenter.org
This newsletter is made possible, as is all the Center’s work,
by generous support from the Ford Foundation.
We invite you to contact the Center if you wish to join it,
contribute to its mission, inquire about one of its events
or projects, or bring to its attention a case or public
policy issue.
The Center welcomes tax-deductible donations to
further its mission of promoting and defending good
government practices in criminal matters. To contribute,
please visit www.prosecutioncenter.org and click on the
“Contact/Join/Contribute” link on the left side of the
screen, or cut and paste this address into your browser
window: www.law.nyu.edu/centers/adminofcriminallaw/
contactjoincontribute. You can also contact us directly
at prosecutioncenter@nyu.edu.
To join the Center, please e-mail us at
prosecutioncenter@nyu.edu. You will be entered into the
Center’s database to receive invitations to Center events
and updates on recent activities and publications.

Prosecution Notes - Fall 2010

The Center on the Administration of Criminal Law is pleased to present Prosecution Notes. This edition recounts some of the Center’s successes since its founding, introduces the Center’s personnel, offers analysis and reform proposals by expert practitioners of recent developments in the area of prosecutorial misconduct, and summarizes all criminal law decisions fromthe 2009-10 Supreme Court Term